Judge Mark E. Windham, Case 18STLC12069 2023-03-28 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

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Bander v. Bills, et al.

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

(CCP § 437c)

Defendants Daniel Sloan and Howard Management Group’s Motion for Summary Judgment, or in the alternative, Summary Adjudication, is CONTINUED TO MAY 8, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiffs Joel Bander and Felicia Bander (“Plaintiffs”) filed the instant action for failure to return their security deposit and related claims against Defendants Ronald Bills (“Defendant Bills”), Howard Management Group (“Defendant HMG”), Daniel Sloan (“Defendant Sloan”), Gonzalo Olmedo dba Olmedo’s Construction (“Defendant Olmedo”) and Business Alliance Insurance Company (“Defendant BAIC”) on September 24, 2018. The case was initially assigned to the Limited Jurisdiction Court, then reassigned to the Independent Calendar Court. (Notice of Reassignment, 09/24/19.) The First Amended Complaint was filed on October 22, 2019.

Defendant WIR Holdings, LLC (“Defendant WIR”), added as a doe defendant, filed a Cross-Complaint against Plaintiffs on October 14, 2020. The Cross-Complaint alleges that Plaintiffs breached their lease agreement by damaging the concrete driveway of the premises (“the Premises”) in an amount greater than covered by their security deposit.

On December 21, 2022, the Court found that exceptional circumstances exist in this action, which warrant appointment of a discovery referee. (Minute Order, 12/21/22.) The discovery referee was appointed on January 17, 2023. (Minute Order, 01/17/23.)

Defendants Sloan and HMG filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication, on November 29, 2022. The other Defendants also filed Motions for Summary Judgment, or in the alternative, Summary Adjudication, on the same date. Plaintiffs filed a joint opposition memorandum, with distinct separate statements for each Motion, on March 14, 2023.

Plaintiffs’ opposition seeks a continuance of the hearing on the Motion under Code of Civil Procedure section 437c, subdivision (h), which states: “If it appears from the affidavits submitted in opposition . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc., § 437c, subd. (h).) In order to obtain a continuance under the statute,

The party’s supporting declarations must show: “(1) ‘Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion’; (2) ‘The specific reasons why such evidence cannot be presented at the present time’; (3) ‘An estimate of the time necessary to obtain such evidence’; and (4) ‘The specific steps or procedures the opposing party intends to utilize to obtain such evidence.’ ”

(501 East 51st Street, Long-Beach-10 LLC v. Kookmin Best Insurance Co., Ltd. (2020) 47 Cal.App.5th 924, 939 [citing Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532].)

Plaintiffs explain that their motions before the discovery referee remain pending. (Opp., J. Bander Decl., ¶¶13-15.) The motions seek electronically stored information (“ESI”) regarding emails between Defendants, which Plaintiffs contend will demonstrate the amount charged against their security deposit was improper. (Id. at ¶¶8-12.) The ruling on the discovery motions is expected around the end of April 2023, but Plaintiffs contend the ESI examination might not take place until July 2023, which is after the current June 7, 2023 trial date. (Id. at ¶14.) In light of the June 7, 2023 trial date, the hearing on the instant Motion cannot be continued beyond May 8, 2023. (See Code Civ. Proc., § 437c, subd. (a)(3).)